The Legal Thinking Methodology Of Value Measurement

The value measurement is a perpetual and ever new theoretical issue in the history of jurisprudence, with a deep historical origin and a distinct theoretical line of development. The theory of interest measurement, the theoretical source of value measurement, originated from the query and reflection which German Jhering and America Holmes conducted towards the legal formalism in behalf of jurisprudence of conceptualism and analytical positivism. Interest measurement has experienced the development of the jurisprudence of interest, the school of free law, the value jurisprudence, the sociological jurisprudence and the jurisprudence of realism ever since. In view of the study on the origin and development of interest measurement, first, we should distinguish the theoretical development of value measurement. Second, we should analyze the theoretical viewpoints and research methods of value jurisprudence, new analytical positivism jurisprudence, legal hermeneutics and legal argumentation for reference to promote the theoretical knowledge of value measurement. And the last, we should make a further study on it in multi-dimension perspectives of legal ontology, legal epistemology, legal methodology and theory of legal value. The rightness of value judgment is the core of value measurement. The following is required to resolve this problem: first, achieving knowledge of the relations between subjectivity and objectivity, absoluteness and relativity of value judgment from an angle of view of legal value; second, approaching the relations between value measurement and legal interpretation, legal argumentation and legal reasoning in the condition of the system of legal thinking methodology from an angle of view of legal thinking methodology; at last, studying its role and function on the stage of judicial process, analyzing its operation stages, thus producing the specific procedure, rules and methods. Hard cases ensure the necessity of value measuring, which is grounded on legal thinking methodology, legal elements, legal system and legal value. Value measurement is a creative legal thinking method that legal professionals, especially the judges, when exerting themselves to resolve hard cases, take into account of new needs brought about by progress in social economics, politics and culture and changes in common values and ethics, measure and judge them in the perspective of legal spirit, purpose value, and principle, interpret creatively the laws with the help of interest measurement and value judgment, find, make and choose proper adjudicating norms for particular cases and eventually reach a justifiable legal conclusion through proper legal reasoning and adequate legal arguing. Value measurement is a legal thinking orientation, a legal thinking custom or a legal thinking model based on value orientation, which analyzes the rights in the perspective of interest, and makes value evaluation and value choice through the particular standards of legal value. It is legal thinking that sets up a proper value orientation between formalism and substance, able to make the basic contradiction in legal thinking method into harmony, and to balance and choose the legal value of contradiction and competition. Value measurement is a special legal method, which can be properly applied only when combined with other legal methods, and vice versa. It can integrate and distinguish legal methods. On the one hand, with its help, other legal methods can overcome their limitation, integrating and functioning as a whole. On the other hand, value measurement can display the advantages of other legal methods, which, conversely, play their roles in different stages of judicial process. Interest measurement and value judgment is the core of legal thinking methods of value measurement. Interest measurement is to measure and compare the different subjects'interest of different contents, to bring about equilibrium and choice of interests ultimately. Value judgment, orientated towards the standards of legal value, is evaluating, comparing and measuring the acts, choices, decisions, interest requests, or right demands in value, to judge, which is justifiable, prior or worth protecting by law. Value judgment includes such aspects as follows: value judgment of the legal acts, the interest relations, the relations between substantial values, and the relations between substantial value and formal value. Value judgment is required to be objective on the presupposition of affirming its subjectivity in the nature of value judgment. Some rules ensure the objectivity and justification of value judgment, including the general formula, the particular formula and the rules of operation. General formula includes the efficiency principle of interest protection and limitation, the value priority principle of interest choice, the equality principle of interest balance and compensation and the equilibrium and choice principle of efficiency and equality.The particular formula involve the principle of not harming communal interest, the value favor principle of interest protection, the guarantee principle of fundamental human rights and the equilibrium and choice principle of legal formal value and legal substantial value. Moreover, the judgment must obey the particular operation rules on the basis of the particular hard cases. Legal interpretation is an important stage in the procedure of value measurement. It is an important legal method with which the interpreter defines the relative significance between facts and norms by his fore-understanding, integrating fore-understanding, case facts and law texts, making norms concrete with facts and facts abstract with norms, in order to find and rebuild adjudicating norms able to be applied to other cases. The interpreter's fore understanding, internalized by value measurement, plays an important role in the process of legal interpretation. In addition, value measurement supplies grounds to the choice and application of legal interpretation methods in narrow sense, loophole and value supplement on the basis of value measurement. An important thinking stage of value measurement is the proper application of legal reasoning methods, which must be on the basis and presupposition of interest measurement and value judgment. Legal argumentation, as an important legal method, is a major stage in the process of judicial judgment, and the necessary procedure and important constitutive part of the legal thinking method of value measurement. Legal argumentation is essential to the value judgment and legal interpretation and legal reasoning guided by it as well. The main aim of legal argumentation is to prove that a normative proposition that expresses the legal judgment is right, in other words, legitimate and rational. The procedure, rules and methods of legal argumentation in value measurement include the rules of formal legal argumentation of the deductive logic, the rules of legal argumentation pertaining the presupposition of legal reasoning, the rules of formal and substantial legal argumentation pertaining value judging and the rules of general practical argumentation pertaining value judgment. An intensive study on the thinking methods of value measurement evokes certainly the important theoretical innovation and development of legal ontology, legal epistemology, legal value and legal methodology. It contributes to the new understanding of legal ontology, to the further knowledge of legal epistemology in the perspective of hermeneutics and consensus, to the grasp of the particularity of legal thinking methods, to the theoretical understanding of legal value and to the...